Om Parkash Virmani Vs State of Haryana and Anr.

The present application has been preferred under Section 378(4) of the Code of Criminal Procedure, 1973 (hereinafter ‘CR.P.C.’) seeking grant of leave to appeal the judgment of acquittal dated 08.09.2017 passed by the learned Judicial Magistrate Ist Class, Faridabad in a case stemming from complaint dated 10.04.2015 filed under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter to be referred as ‘NI Act’).

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Tersely put, the facts of the case are that the respondent borrowed a sum of Rs. 9,50,000/- from the applicant in the month of May 2012. Thereafter, respondent, in order to clear his liability, had issued a cheque bearing No. 104302 dated 02.02.2015 for the amount of Rs. 9,50,000/-, drawn on Bank of Baroda, Sector-19, Mathura Road, Faridabad. However, on presentation for encashment, the same was dishonoured vide memo dated 26.02.2015 with the remarks- ‘Payment stopped by Drawer’ . Consequently, the applicant-appellant served a legal notice dated 17.03.2015 upon the respondent. Since the respondent failed to make the requisite payment in the

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AJAY GOSWAMI 2025.07.04 10:36 I attest to the accuracy and integrity of this document

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stipulated time, complaint(supra) was filed against him. After assessing all the material available on the record, the learned trial Court acquitted the respondent vide judgment dated 08.09.2017.

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The Hon’ble Supreme Court in M/s. Celestium Financial vs. A. Gnanasekaran Etc., 2025(3) RCR (Criminal) 208 , after considerable discussion and comparative interpretation of Sections 372 and 378(4) of Cr.P.C., concluded that the victim has a right to file an appeal under Section 372 of Cr.P.C. before the Court of Sessions. Speaking through Justice B.V. Nagarathna, the following was held:

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“7.12 The reasons for the above distinction are not far to see and can be elaborated as follows:

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Firstly, the victim of a crime must have an absolute right to prefer an appeal which cannot be circumscribed by any condition precedent. In the instant case, a victim under Section 138 of the Act, i.e., a payee or the holder of a cheque is a person who has suffered the impact of the offence committed by a person who is charged of the offence, namely, the accused, whose cheque has been dishonoured.

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Secondly, the right of a victim of a crime must be placed on par with the right of an accused who has suffered a conviction, who, as a matter of right can prefer an appeal under Section 374 of the CrPC. A person convicted of a crime has the right to prefer an appeal under Section 374 as a matter of right and not being subjected to any conditions. Similarly, a victim of a crime, whatever be the nature of the crime, unconditionally must have a right to prefer an appeal.

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Thirdly, it is for this reason that the Parliament thought it fit to insert the proviso to sub-section 372 without mandating any condition precedent to be fulfilled by the victim of an offence, which expression also includes the legal representatives of a deceased victim who can prefer an appeal.

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On the contrary, as against an order of acquittal, the State, through the Public Prosecutor can prefer an appeal even if the complainant does not prefer such an appeal, though of course such an appeal is with the leave of the court . However, it is not always necessary for the State or a complainant to prefer an appeal. But when it comes to a victim's right to prefer an appeal, the insistence on seeking special leave to appeal from the High Court under Section 378(4) of the CrPC would be contrary to what has been intended by the Parliament by insertion of the proviso to Section 372 of the CrPC.

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Fourthly, the Parliament has not amended Section 378 to circumscribe the victim's right to prefer an appeal just as it has with regard to a complainant or the State filing an appeal. On the other hand, the

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AJAY GOSWAMI 2025.07.04 10:36 I attest to the accuracy and integrity of this document

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Parliament has inserted the proviso to Section 372 so as to envisage a superior right for the victim of an offence to prefer an appeal on the grounds mentioned therein as compared to a complainant.

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Fifthly, the involvement of the State in respect of an offence under Section 138 of the Act is conspicuous by its absence. This is because the complaint filed under that provision is in the nature of a private complaint as per Section 200 of the CrPC and Section 143 of the Act by an express intention incorporates the provisions of the CrPC in the matter of trial of such a deemed offence tried as a criminal offence. Therefore, the complainant, who is the victim of a dishonour of cheque must be construed to be victim in terms of the proviso to Section 372 read with the definition of victim under Section 2(wa) of the CrPC.”

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In view of the judgment rendered by the Hon’ble Supreme Court

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in Celestium Financial (supra) and this Court in Satish Kumar vs. Jugal Kishor in CRM-A-2700-MA-2018 decided on 02.07.2025 , the learned Sessions Judge, Faridabad is directed to treat the present leave to appeal as an appeal filed under Section 372 of the Cr.P.C. and entrust the same to appropriate Court for its disposal.

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5 . The Registry is directed to send the complete paperbook and the record of the case to the learned Sessions Judge, Faridabad forthwith.

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